14 December 1999. Thanks to C. Castelli, Inside the Navy and
www.insidedefense.com.
Source: Inside the Navy, December 6, 1999, Vol. 12, No. 48,
p 1. © Inside Washington Publishers
Inside the Navy, December 6, 1999
By Christopher J. Castelli
The Pentagon's director of administration and management, David Cooke, has rebuked the executive director of the national security commission led by former Sens. Gary Hart (D-CO) and Warren Rudman (R-NH) for a statement about why the commission has made a practice of meeting in private.
Cooke's actions were prompted by investigative reporting by Inside the Navy.
The United States Commission on National Security, chartered by Defense Secretary William Cohen, is spending millions of dollars to undertake a sweeping review that Cohen has called the most comprehensive such effort since the National Security Act of 1947. The group, also called the Hart-Rudman Commission, released the first of three planned reports last September.
The panel is supposed to conduct business as openly as possible. While classified talks provide valid reasons for the panel to meet in private, mere candid discussions do not, according to government experts on the Federal Advisory Committee Act, which governs such blue ribbon commissions. But an article in the Nov. 22 edition of Inside the Navy revealed that the commission has not been distinguishing between classified and candid discussions. Legal experts contacted by ITN at the time criticized the statement as inappropriate and suggestive of a desire to shield not merely classified information but the entire deliberative process from the public.
At issue is whether the commission is relying on an accurate understanding of the law to determine when secrecy is needed. Cooke responded late last week with a letter to the commission's executive director, retired Air Force Gen. Charles Boyd, expressing concern and urging him and other key commission officials to meet as soon as possible with the Pentagon's general counsel and committee management officer to review the matter and related FACA issues in greater detail.
"I read the statement attributed to [chief of staff] Hank Scharpenberg in the article entitled 'Security Commission Blurs Line Between Classified and Candid Talks,' in the [Nov. 22] edition of Inside the Navy with great concern," Cooke states. "The assertion that 'the nature of this commission's mandate, and the composition of its commissioners, make the distinction between classified discussion and frank and open discussion almost indistinguishable' is inaccurate," he adds.
In his letter, Cooke outlines for the commission the rules the commission must abide by when determining whether the public has the right to attend a given meeting or part of a given meeting.
FACA, which became law in 1972, is currently the legal foundation defining the boundaries in which federal advisory committees can operate. The purpose of the law is to ensure that advice offered to the executive branch and Congress is both objective and accessible to the public. The law places special emphasis on open meetings, chartering, public involvement, and reporting.
The general rule under FACA is that each advisory committee meeting shall be open to the public, according to Cooke. A meeting may not be closed under FACA as a matter of convenience or to encourage candid discussion, Cooke states. Candid discussion is expected in all federal advisory meetings, whether or not they are open to the public. Advisory committee meetings may be closed or partially closed to the public only if the head of the agency (or his/her delegate) determines that part or all of the meeting may be closed based upon one of the exceptions in the Government in the Sunshine Act.
Classified talks or those concerning confidential commercial or financial information or personal information that would present an unwarranted invasion of privacy are examples of meetings that may be closed to the public under law.
While the commission has sought the input of the public through its web site (www.nssg.gov), it has held only one open meeting; and the deliberative process that shaped its first report and is beginning to shape the next report remains mysterious. Some legal observers interpret the commission's statement as a determination to conduct all of its future meetings in private.
To date, this commission's meetings have been closed based on the understanding that classified discussions would likely take place and that classified talks could not, as a practical matter, be segregated from unclassified discussions, Cooke states. While noting this justification is valid and that commission meetings have not been closed without a proper legal review, Cooke notes that if classified talks are not anticipated, or if classified talks can be segregated from those that are unclassified, the meetings must be open in whole or in part to the public, unless another exemption applies.
There are other indications that the commission is not fully embracing the openness required by FACA. Though the law requires the commission to make available for viewing and copying "the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee," the commission's chief of staff denied Inside the Navy the opportunity to copy such documents in the group's public file on July 20. That day, the chief of staff told ITN it would be necessary to file a Freedom of Information Act request to obtain documents. Though ITN filed a FOIA request on July 20, unclassified minutes from meetings on July 7 and 8 were not released by the commission until Nov. 1; other documents requested have yet to be provided.
Last September, questions arose about the commission's decision to close two days of meetings in July after Inside the Navy reported that Hart said on Sept. 15 that he believed those meetings were closed to the public not to protect classified information but to facilitate candid discussions (ITN, Sept. 27, p1). A work order reviewed by Inside the Navy suggests the commission did not plan to discuss classified information at meetings on July 7 and July 8, as the commission announced it would in June. The work order, which was prepared to arrange for the services of a Rhode Island-based contractor at the meeting, states there would be no security requirements for the two days of meetings and the discussion would be held at an unclassified level. Boyd said Sept. 15 that classified information was discussed at the July meetings. He said he was not aware of the work order, but maintained what it says about unclassified talks must be a mistake.